Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Anent Recognition
Date: 28 February 1679
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Robert Graham, Provost of Dumfries, a man in great reputation for wealth as a drover, being broken, this day his escheat is gifted to the Earl of Dundonald, the President, Craigie, &c. primo loco, for payment of their debts. They also got the gift of the recognition of his lands, which he had made to recognosce, by taking a base infeftment after he was bankrupt; which will occasion a pretty debate in the declarator of recognition, whether or no such a fraudulent deed can make the lands recognize, so as to prejudge his creditors; and if this will fall under the compass of the 18th Act Parliament 1621. He could not have disponed validly then; ergo, neither lose them by delinquency, tantum contrahendo quantum delinquendo. Many will be great losers by him. See Durie, 10th March 1627, L. Balmerino; 16th Dec. 1680, Hay.
Vol. I. Page 45.
Anent a Skipper's Liability for Damaged Goods.
If a shipmaster suffer merchant-goods, as cloths or the like, to be eaten by rats, he will be liable to the merchant for the damage, unless he prove he had cats in his ship. This is expressly determined by Cristoph. Crusius de Judiciis Delictorum, p. 421. See also B. Straccha de Naulis, &c. If their goods be burnt in the ship by negligence, or spoiled with water, or rent and torn by stowing too much, the skipper is liable ex edicto, Nautce, caupones, stabularii; and Act 14, Parl. 2, J. III. See 7th Nov. 1677, Laurie; and Stair, tit. 10.
Vol. I. Page 45.
Anent the Effect of Back-Bonds as to Succession in Moveables.
Where a back-bond is granted by an appriser, declaring so much of the sums of the apprising to be to the behoof of another,—if that other, to whom the backbond is granted, dies, quær, whether it falls to his heir or executor; and must be confirmed, as being moveable, and a mere personal obligement to denude, or if it must be conveyed by a general service, as surrogated in place of an heritable right, and so illius naturam assumit, induit et sapit. Stair, tit. 20, compares a back-bond with a reversion; now reversions are heritable.
